Edited version of your written advice

Authorisation Number: 1051418568265

Date of advice: 29 August 2018

Ruling

Subject: GST and home care services

Question 1

Is your supply of home care services to consumers GST-free where you receive a home care subsidy under Part 3.2 of the Aged Care Act 1997 or Part 3.2 of the Aged Care (Transitional Provisions) Act 1997 (Home Care Subsidy) for the care?

Answer

Yes, the supply of the home care service will be GST-free under subsection 38-30(1) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act).

However, where a home visit is a companionship visit, the supply of the service will not be GST-free as companionship visits are not considered to be the provision of care.

Question 2

Is your supply of home care services to consumers GST-free where you receive Commonwealth Home Support Programme (CHSP) or Community Care Supports Program (CCSP) funding in connection with the supply?

Answer

Yes, the supply of the home care service under the CHSP will be GST-free under subsection 38-30(4) of the GST Act to the extent the services are of a kind covered by the GST-free Supply (Care) Determination 2017.

However, the supply will not be GST-free home care under subsection 38-30(4) of the GST Act for services in excess of that for which the CHSP funding relates unless:

● other government funding relates to the services; or

● the services are GST-free under subsection 38-30(3) as discussed in relation to question 3.

However, where a home visit is a companionship visit, the supply of the service will not be GST-free as companionship visits are not covered by the GST-free Supply (Care) Determination 2017.

Yes, the supply of the home care service under the CCSP will be GST-free under subsection 38-30(4) of the GST Act to the extent the services are of a kind covered by the GST-free Supply (Care) Determination 2017.

However, the supply will not be GST-free home care under subsection 38-30(4) of the GST Act for services in excess of that for which the CHSP funding relates unless:

● other government funding relates to the services; or

● the services are GST-free under subsection 38-30(3) as discussed in relation to question 3.

However, where a home visit is a companionship visit, the supply of the service will not be GST-free as companionship visits are not covered by the GST-free Supply (Care) Determination 2017.

Question 3

Where you supply home care services of a kind covered by Item 2.1 (daily living activities assistance) of Part 2 of Schedule 1 to the Quality of Care Principles (Item 2.1 daily living activities assistance) to a consumer and the services are not government funded to any extent, are the services GST-free?

Answer

Yes. Non-government funded services supplied by you to consumers, that are of a kind covered by Item 2.1 daily living activities assistance, are GST-free under subsection 38-30(3) of the GST Act.

Question 4

Where you are engaged by another entity (a home care provider that is not an Australian government agency, an insurer or a compulsory third party scheme operator) to deliver home care services to that entity’s client, will your supply to that other entity be a GST-free supply?

Answer

No, the supply to another entity is not a supply of home care services that is GST-free under section 38-30 of the GST Act nor is it GST-free under section 38-60 of the GST Act.

Rather, it is a supply of contracted services that is taxable, if the further requirements of section 9-5 of the GST Act are met.

If you receive a payment from the other entity’s client, this forms part of the consideration for the taxable supply that you make to the other entity.

Question 5

Where you are engaged by another entity that is an Australian government agency, an insurer or a compulsory third party scheme operator to deliver home care services, will your supply to that other entity be a GST-free supply?

Answer

Yes, your supply under your arrangement with an Australian government agency is GST-free under section 38-60(3) of the GST Act to the extent the services are of a kind covered by:

● Item 2.1 daily living activities assistance and provided by you to an aged or disabled person, or

● the GST-free Supply (Care) Determination 2017 and provided by you to a target person

unless you have agreed with the other entity that the supply is not to be treated as a GST-free supply. Where you and the other entity agree to treat your supplies as taxable, these supplies are not GST-free, pursuant to 38-60(4) of the GST Act.

Your supply under your arrangement with an insurer or a compulsory third party scheme operator is GST-free under section 38-60(1) or (2) respectively of the GST Act to the extent the services are of a kind covered by:

● Item 2.1 daily living activities assistance and provided by you to an aged or disabled person

unless you have agreed with the other entity that the supply is not to be treated as a GST-free supply. Where you and the other entity agree to treat your supplies as taxable, these supplies are not GST-free, pursuant to 38-60(4) of the GST Act.

Relevant facts and circumstances

You are registered for GST.

You are an approved provider under the Aged Care Act 1997 to provide home care services to aged and disabled people.

You receive a subsidy from the Australian Government to provide home care services to eligible persons through the Home Care Packages Program (HCPP).

You are a Commonwealth Home Support Programme (CHSP) provider and receive funding from the Australian Government to provide care services to eligible persons through the CHSP.

Home Care Packages Program (HCPP)

The Australian Government has responsibility for the HCPP:

● To assist people to remain living in their home.

● To enable consumers to have a choice and flexibility in the way that the consumer’s aged care and support is provided at home.

There are four levels of Home Care Packages:

● Home Care Level 1 — a package to support people with basic care needs.

● Home Care Level 2 — a package to support people with low level care needs.

● Home Care Level 3 — a package to support people with intermediate care needs.

● Home Care Level 4 — a package to support people with high care needs.

In order to access a Home Care Package (HCP), an individual needs to be assessed and approved as eligible for home care by an Aged Care Assessment Team (ACAT).

Once the individual has been offered a HCP, they will approach a service provider (such as you) to organise care. You subsequently meet with the individual and a Home Care Agreement (agreement) is put in place. The agreement will detail the particular services, the amount of each service and the cost.

You will enter the consumer’s (the individual’s) unique number into the MyAgedCare system and the Medicare system. You are then funded automatically each month – subject to confirming the supply of the care and any adjustments for things such as respite care or hospitalisation of the consumer. The Medicare system automatically adjusts for changes in ACAT levels. The MyAgedCare system and the Medicare system are linked.

The funding components for a package can include:

1. Government funding:

● Government Subsidy (Home Care Package) for example $40.65 per day for a Level 2 package.

● Home care package supplements, for example the oxygen supplement.

2. Client Agreed Additional Contribution (Co-payment):

● Means tested contribution from the consumer. This will be $0 for a consumer who is receiving a full pension. It will be more for someone receiving a part pension. This cannot be waived by you. The government funding is reduced by this amount.

● Daily service charge 17.5% of the pension – this amount can be reduced or waived by you.

3. Private payment / Top up payment from the consumer. Where funding components 1 and 2 do not provide sufficient resources to pay for the services required, the consumer may elect to provide additional funds from their own resources.

You combine a consumer’s funding components into a single pool of funds for that consumer. Your service provision expenses and monthly administration fee are paid from this pool. You maintain a separate sub account for each consumer. The top up payments from the consumer form part of the total funding components for that consumer’s HCP and are not allocated/reconcilable to a specific/separate service.

The services offered to each consumer as part of a HCP are intended to be flexible and consistent with the consumer’s needs.

The Quality of Care Principles specify the services that an approved provider of a home care service may provide and also specify excluded items that must not be included in a HCP.

You provide the following care services:

● Home visits (hourly cost plus mileage) – transport and help with everyday tasks like reading and writing letters.

● Shopping (hourly cost plus mileage).

● Centre based meals (administration cost).

● Centre based meals (food cost).

● Home delivered meals (administration cost).

● Home delivered meals (food cost).

You provide the following support services:

● Day centre activities:

● Wellness Day Programs (meals and transport excluded) - activities including gentle group exercise, creative arts, music, theme days, and reminiscence groups.

● Wellness Day Programs Transport.

● Social Outings (costs associated with the outing are excluded, eg meal and tickets).

● Seniors events lunch.

● Senior events morning tea.

You also charge consumers for the following:

● Cancellation Fee (for example where a consumer gives insufficient notice that a service is not required).

Commonwealth Home Support Programme (CHSP)

You are a CHSP provider with a funding agreement with the Department of Health.

You receive funding from the Australian Government to provide agreed amounts of specified services to persons aged 65 and over, for example 500 hours of domestic assistance. Each service has its unique code. You must proactively supply the services to eligible consumers.

Consumers are requested to make a financial contribution. The government funding and the consumer contributions are pooled, with no separate sub accounts for each consumer.

Your services are provided directly to consumers and you do not use third party providers. However, you may provide services to other providers.

An individual is assessed by the Regional Assessment Service (RAS) and is determined to be eligible for specified quantities of the specified services. The individual will contact a service provider to acquire the services – not necessarily all from the one provider. Where you are selected as the service provider you are paid by submitting a claim detailing the unique identifier for the consumer (the individual), the code for the service and the quantity of the services provided.

A consumer with a HCP can use the HCP funding to acquire CHSP services, where it is listed in their agreement. If they wish to acquire a CHSP service, they are required to pay full fees. That is, none of the CHSP funding will apply to that particular supply but the consumer with a HCP can use their individualised budget to pay for the services.

You provide the following care services:

● Home visits (hourly cost plus mileage) – transport and help with everyday tasks like reading and writing letters.

● Shopping (hourly cost plus mileage).

● Day centre activities:

● Activities including gentle group exercise, creative arts, music, theme days, and reminiscence groups.

● Social Inclusion Outings (costs associated with the outing are excluded eg meal and tickets).

● Seniors events lunch.

● Senior events morning tea.

● Centre based meals (administration cost).

● Centre based meals (food cost).

● Home delivered meals (food cost).

● Home delivered meals (administration cost).

● Transport to and from day care centres and social outings.

You also charge consumers for the following:

● Cancellation Fee (for example where a consumer gives insufficient notice that a service is not required).

You provide the following care service to carers for which you do not receive any CHSP:

● Transport to and from day care centres and social outings.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 Section 9-5

A New Tax System (Goods and Services Tax) Act 1999 Section 38-30

A New Tax System (Goods and Services Tax) Act 1999 Section 38-60

A New Tax System (Goods and Services Tax) Act 1999 Section 195

Reasons for decision

Question 1

Home Care Packages Program

Subsection 38-30(1) provides:

A supply of *home care is GST-free if home care subsidy is payable under Part 3.2 of the Aged Care Act 1997 or Part 3.2 of the Aged Care (Transitional Provisions) Act 1997 to the supplier for the care.

Under section 195-1, ‘Home care’ has the meaning given by section 45-3 of the Aged Care Act 1997 which provides:

Home care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care.

The term ‘care’, for the purposes of subsection 45-3(1) of the Aged Care Act 1997 is defined in Schedule 1 of the Aged Care Act 1997, to mean services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently.

You supply home care services as part of a Home Care Package to a consumer pursuant to a Home Care Agreement between you and the consumer.

Under section 13 of the Quality of Care Principles 2014, an approved provider of a home care service must provide a package of care and services selected from the care and services specified in Part 1 of Schedule 3.

The care recipient (consumer) and the approved provider may also agree to include other care and services required to support the consumer to live at home, if they can be provided within the limits of the resources available (Government funding, Client Agreed Additional Contribution (Co-payment) and Private payment / Top up payment from the consumer) and they are not excluded items. These services form part of the care plan under the Home Care Agreement.

Where you receive a home care subsidy under Part 3.2 of the Aged Care Act 1997 or Part 3.2 of the Aged Care (Transitional Provisions) Act 1997 for a Home Care Package (package of personal care services and other personal assistance) under which you make supplies to a consumer pursuant to a Home Care Agreement, the supply is GST-free under subsection 38-30(1).

However, where a service does not form part of a Home Care Agreement or is not permitted to form part of a Home Care Agreement, it will not be GST-free under subsection 38-30(1). For example, food is an excluded item for the purposes of home care package services. As such, the food component of delivered meals is not GST-free under subsection 38-30(1) but the preparation and delivery service can be GST-free under subsection 38-30(1).

ATO Interpretative Decision ATO ID 2003/13 Goods and Services Tax GST and supply of community care for a fee provides that an entity makes a GST-free supply under subsection 38-30(1) when it supplies care services, in respect of which the entity receives a community care subsidy, to an aged person in their own home and charges the aged person a fee for those services.

If pursuant to the Home Care Agreement with a consumer, you receive a co-payment from the consumer in relation to government funded services supplied under a Home Care Package, that payment will form part of the consideration for the GST-free home care services supplied under subsection 38-30(1).

This would also be the case where, pursuant to the Home Care Agreement with a consumer, you receive a private payment from the consumer that forms part of the total funding components for that consumer’s Home Care Package.

Part 1 of Schedule 3 to the Quality of Care Principles 2014 lists the care services, support services and clinical services that an approved provider of a home care service may provide.

Part 1 of Schedule 3 to the Quality of Care Principles 2014 also lists items that must not be included in the package of care and services provided under section 13.

You will make a GST-free supply of home care under section 38-30(1) when you supply the following care services, where they are listed in your home care agreement with the consumer and paid for from the Home Care Package (HCP):

● Home visits (hourly cost plus mileage) – transport and help with everyday tasks like reading and writing letters - GST-free where it is covered by item 2 of care services (activities of daily living).

Note: Where the home visit is a companionship visit, the supply of the service will not be GST-free as companionship visits are not considered to be the provision of care.

● Shopping (hourly cost plus mileage) - GST-free as it is covered by item 1(b) of support services (activities of daily living).

● Centre based meals (administration cost) - the preparation will be GST-free as it is covered by item 3(a) of care services (nutrition).

Note: Centre based meals (food cost) - The food content of the meal will not be a GST-free supply as it is an excluded item under Part 1 of Schedule 3 to the Quality of Care Principles 2014.

● Home delivered meals (administration cost) - the preparation will be GST-free as it is covered by item 3(a) of care services (nutrition).

Note: Home delivered meals (food cost) - The food content of the home delivered meal will not be a GST-free supply as it is an excluded item under Part 1 of Schedule 3 to the Quality of Care Principles 2014.

You will make a GST-free supply of home care under section 38-30(1) when you supply the following support services, where they are listed in your home care agreement with the consumer and paid for from the HCP:

● Day centre activities:

● Wellness Day Programs (meals and transport excluded) - activities including gentle group exercise, creative arts, music, theme days, reminiscence groups - GST-free as it is covered by item 1(p) of support services (arranging social activities).

● Wellness Day Programs Transport - GST-free where it is covered by item 1(j) of support services (transport and personal assistance).

● Social Outings (costs associated with the outing are excluded eg meal and tickets) - GST-free as it is covered by item 1(p) of support services (arranging social activities).

● Seniors events lunch - GST-free as it is covered by item 1(p) of support services (arranging social activities).

● Senior events morning tea - GST-free as it is covered by item 1(p) of support services (arranging social activities).

Note: The food content of the events will not be a GST-free supply as it is an excluded item under Part 1 of Schedule 3 to the Quality of Care Principles 2014.

● Transport to and from day care centres and social outings - GST-free as it is covered by item 1(j) of support services (transport and personal assistance).

Administration Fees (other than exit fees) and Care Planning Fees will be payment for a GST-free supply that you make if:

● the payment is for arranging for care services to be delivered and form part of home care, and

● you receive a home care subsidy under the Aged Care Act 1997 or the Aged Care (Transitional Provisions) Act 1997 for supplying the care.

A cancellation fee, for example where a consumer gives insufficient notice that a service is not required, will be GST-free if the intended supply is GST-free.

You will not make a GST-free supply for any Exit Fee charged to consumers permanently leaving your service because the Exit Fee is not for a supply of care and therefore section 38-30(1) does not apply. Exit fees are payment for the activities associated with leaving the approved provider and/or for transferring unspent funds to another provider, they are not payment for care or part of the service of arranging for care. Accordingly, the payment will be for a taxable supply and GST will apply.

Question 2

Commonwealth Home Support Programme

Section 38-30(4) provides:

A supply of care is GST-free if:

(a) the supplier receives funding from the Commonwealth, a State or a Territory in connection with the supply; and

(b) the supply of the care is of a kind determined in writing by the *Aged Care Minister to be similar to a supply that is GST-free because of subsection (2).

The first requirement under subsection 38-30(4) is that the supplier receives government funding in relation to the respective supply, in this case the supply of Commonwealth Home Support Programme (CHSP) services.

The second requirement under subsection 38-30(4) is that the supply of care is of a kind determined in writing by the Aged Care Minister.

The Aged Care Minister has made the GST-free Supply (Care) Determination 2017 (Care Determination). The Care Determination has two schedules:

● Schedule 1 in relation to a targeted person; and

● Schedule 2 in relation to a carer that substantially enables the carer to give care to a targeted person.

The terms ‘care’, ‘carer’ and ‘targeted person’ are defined in the Care Determination:

care means services to enable a targeted person to continue to live at home.

carer means a person who provides care to a targeted person.

targeted person means a frail, older person or a younger person who:

(a) has a moderate, severe or profound disability (including addiction to a drug); and

(b) lives at home; and

(c) would, in the absence of services of the kind mentioned in Schedule 1, be at risk of prematurely or inappropriately needing:

(i) long term care in a hospital or other institution; or

(ii) residential care within the meaning of the Aged Care Act 1997.

Care provided to targeted persons

Schedule 1 to the Care Determination lists the following items of care provided to targeted persons:

You will make a GST-free supply of care under section 38-30(4) when you supply the following care services to targeted persons, where they are of a kind listed in Schedule 1 to the Care Determination and you receive funding for the supply under your CHSP Agreement:

● Home visits (hourly cost plus mileage) – transport and help with everyday tasks like reading and writing letters - GST-free where it is covered by item 1 of the Care Determination (Home help).

Note: Where the home visit is a companionship visit, the supply of the service will not be GST-free as companionship visits are not considered to be the provision of care.

● Shopping (hourly cost plus mileage) - GST-free where it is covered by item 1 of the Care Determination (Home help).

● Centre based meals (administration cost) - GST-free as it is covered by item 5 of the Care Determination (Provision of food).

● Centre based meals (food cost) - GST-free as it is covered by item 5 of the Care Determination (Provision of food).

● Home delivered meals (administration cost) - GST-free as it is covered by item 5 of the Care Determination (Provision of food).

● Home delivered meals (food cost) - GST-free as it is covered by item 5 of the Care Determination (Provision of food).

● Day centre activities:

● Wellness Day Programs (meals and transport excluded) - activities including gentle group exercise, creative arts, music, theme days, reminiscence groups - GST-free where they are provided by the Day Centre and are covered by item 16 of the Care Determination (Day care).

● Wellness Day Programs Transport - GST-free as it is covered by item 8 of the Care Determination (Transport).

● Social Outings (costs associated with the outing are excluded eg meal and tickets) - GST-free where they are provided by the Day Centre and are covered by item 16 of the Care Determination (Day care).

Note: Individual social outings will not be GST-free where they are not provided by a Day Care Centre.

● Seniors events lunch - GST-free where they are provided by the Day Centre and are covered by item 16 of the Care Determination (Day care).

● Senior events morning tea - GST-free where they are provided by the Day Centre and are covered by item 16 of the Care Determination (Day care).

● Transport to and from day care centres and social outings - GST-free as it is covered by item 8 of the Care Determination (Transport).

You will also make a GST-free supply under section 38-30(4) where you charge a Cancellation Fee, for example where a consumer gives insufficient notice that a service is not required, if the intended supply is GST-free.

If you supply services in excess of that for which the government funding relates (for example, you receive government funding for a total of 500 hours of respite care for carers, but the services exceed the total of 500 hours), the supply of those excess services will not be GST-free home care unless other government funding relates to the services or the services are GST-free under subsection 38-30(3) as discussed in relation to Question 3.

Care provided to carers

Schedule 2 to the Care Determination lists the following items of care provided to carers (a person who provides care to a targeted person):

You will not make a GST-free supply of care under section 38-30(4) when you supply the following care service to carers, even though it is of a kind listed in Schedule 2 to the Care Determination (item 8), as you do not receive any CHSP funding for this service:

● Transport to and from day care centres and social outings.

The facts that you have provided do not refer to any other services provided to carers. However, if services are provided to carers, you will make a GST-free supply of care under section 38-30(4) where they are of a kind listed in Schedule 2 in the Care Determination and you receive funding for the supply under your CHSP Agreement.

If you supply services in excess of that for which the government funding relates (for example, you receive government funding for a total of 500 hours of respite care for carers, but the services exceed the total of 500 hours), the supply of those excess services will not be GST-free home care unless other government funding relates to the services.

Question 3

Non-government subsidised/funded services

Subsection 38-30(3) states:

A supply of *home care is GST-free if the supply is of services:

(a) that are provided to one or more aged or disabled people; and

(b) that are of a kind covered by item 2.1 (daily living activities assistance) of Part 2 of Schedule 1 to the *Quality of Care Principles.

Part 2 of Schedule 1 of the Quality of Care Principles 2014 states the following items of daily living activities assistance (Item 2.1):

The GST and home care guidance on the ATO website (search for ‘QC 55890’ on the ATO website) lists examples of services that are not covered by Item 2.1:

● hairdressing

● housework and gardening

● preparing meals and grocery shopping for individuals

● aids, appliances and monitoring medication; however, they may be GST-free health supplies under a different section of the GST Act

● rehabilitation and health care services; however, they may be GST-free health supplies under a different section of the GST Act

● help with writing cheques, emails and letters

● advocacy services

● accommodation

● driving individuals to and from appointments and social activities

● social and community activities, such as providing companionship, craft and reading activities to individuals.

Where you supply home care services of a kind covered by Item 2.1 daily living activities assistance directly to aged or disabled people the supply will be GST-free. There is no requirement in subsection 38-30(3) that the supplier receives a subsidy or funding from the government in respect of the care services you supply.

Where you supply a package of ‘non-government funded/subsidised’ home care services that includes home care services of a kind not covered by Item 2.1 or that are not otherwise GST-free, then those items will generally be taxable. Where you supply a package of care that is partly GST-free and partly taxable, you will be making a mixed supply and it will be necessary to apportion between the GST-free and taxable amounts.

Goods and Services Tax Ruling GSTR 2001/8 Goods and services tax: Apportioning the consideration for a supply that includes taxable and non-taxable parts provides methods and examples that you may use to help you work out how to apportion the consideration for a supply that contains separately identifiable taxable and non-taxable parts.

Question 4

Subcontracted service – entities other than Australian government agencies, insurers and compulsory third party scheme operators

Section 38-30 provides:

(1) A supply of *home care is GST-free if home care subsidy is payable under Part 3.2 of the Aged Care Act 1997 or Part 3.2 of the Aged Care (Transitional Provisions) Act 1997 to the supplier for the care.

(2) A supply of care is GST-free if the supplier receives funding under the Home and Community Care Act 1985 in connection with the supply.

(3) A supply of *home care is GST-free if the supply is of services:

(a) that are provided to one or more aged or disabled people; and

(b) that are of a kind covered by item 2.1 (daily living activities assistance) of Part 2 of Schedule 1 to the *Quality of Care Principles.

(4) A supply of care is GST-free if:

(a) the supplier receives funding from the Commonwealth, a State or a Territory in connection with the supply; and

(b) the supply of the care is of a kind determined in writing by the *Aged Care Minister to be similar to a supply that is GST-free because of subsection (2).

To satisfy these provisions, there must be a supply of ‘care’ or ‘home care’.

In the scenario being considered, you supply the service to Entity A of providing the stipulated services to the client of Entity A.

‘Home care’ is defined by reference to the GST Act and the Aged Care Act 1997 as care consisting of a package of personal care services and other personal assistance to be provided to a person who is not being provided with residential care. The term ‘care’ is defined to mean services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently.

For the purposes of ‘care’ in subsections in subsections 38-30(2) and (4), it is considered that the definition in the Aged Care Act 1997 would be reflective of the meaning of care generally.

As such, it is considered that a supply of ‘care’ or ‘home care’ must be made to an individual to support their physical, mental or social functioning. Although the definitions of ‘home care’ and ‘care’ referred to above use the term ‘provided’, we consider that the context of the provisions in the Aged Care Act 1997 shows that the term ‘provided’ is consistent with the term ‘supply’ in the GST Act.

On this basis, ‘care’ or ‘home care’ is not supplied to an entity carrying on a business (Entity A) where the supply is a service of providing the home care services to an individual client of that entity (Entity A). In this instance, the entity carrying on the business (Entity A) is not being supplied with ‘home care’ by you.

You will accordingly make a taxable supply to Entity A unless section 38-60 of the GST Act applies. If section 38-60 does not apply and assuming that Entity A is registered for GST and acquires the services from you in carrying on its enterprise, Entity A makes a creditable acquisition under section 11-5 of the GST Act from you for which it is entitled to an input tax credit.

This view is consistent with paragraph 155 of Goods and Services Tax Ruling GSTR 2006/9 Goods and services tax: supplies which states that:

“Under the GST health provisions in Subdivision 38-B, subject to certain exceptions..., the supply is only GST-free where an individual receiving that service or specific health treatment is the recipient of that supply. This outcome results from the specific wording in some health provisions, whilst in other provisions it is due to the nature of the services themselves. This means that a GST-free supply of a health service cannot be made to a business entity or a non-profit body.”

Further, in your circumstances, as Entity A is a home care provider that is not an Australian government agency, an insurer or a compulsory third party scheme operator, the supply will not be GST-free under section 38-60.

Note: Section 38-60 in relation to services supplied to Australian government agencies, insurers and compulsory third party scheme operators is discussed in Question 5.

Question 5

Subcontracted service - Australian government agencies, insurers and compulsory third party scheme operators

Australian government agencies

Subsection 38-30(4) provides that a supply of care is GST-free if:

(a) the supplier receives funding from the Commonwealth, a State or a Territory in connection with the supply, and

(b) the supply of the care is of a kind determined in writing by the Aged Care Minister to be similar to a supply that is GST-free because of subsection (2).

As explained in Question 2, the Aged Care Minister has made the GST-free Supply (Care) Determination 2017 (Care Determination). The Care Determination provides that for the purposes of paragraph 38-30(4)(b), the supply of care of a kind mentioned in Schedule1 to a targeted person is similar to a supply that is GST-free because of subsection 38-30(2).

It is administratively accepted that local governments (councils) are an Australian government agency. A payment from an Australian government agency (including another council) to you is funding for the purposes of this provision. However your supply to another Australian government agency is not ‘care’ as care can only be supplied to an individual. A business entity cannot be supplied with care.

Therefore your supplies to another Australian government agency do not satisfy the requirements of subsections 38-30(4).

However, subsections 38-60(3) and (4) state:

Government agencies

(3) If:

(a) a supply is a supply of a service to an *Australian government agency; and

(b) the service is the supplier making one or more other supplies of goods or services to an individual; and

(c) at least one of the other supplies is wholly or partly *GST-free under this Subdivision;

the first-mentioned supply is GST-free to the extent that the other supplies mentioned in paragraph (b) are GST-free under this Subdivision.

Parties may agree for supply not to be GST-free

(4) However, a supply is not GST-free (to any extent) under this section if the supplier and the *recipient have agreed that the supply, or supplies of a kind that include that supply, not be treated as GST-free supplies.

Where another Australian government agency contracts you to provide goods and/or services to one of their clients, you are making the supply to that other Australian government agency of the service of making a supply of goods and/or services to an individual.

The same reasoning as stated previously in respect of subsections 38-30(3) and (4) applies with the exception that the underlying supply you make to the individual is a supply of ‘care’ for the purposes of that provision.

In this situation, the reference to subsection 38-30(4) is relevant, as you are being contracted by an Australian government agency and its payment to you would constitute funding by the Commonwealth, State or Territory.

Where another Australian government agency contracts you to provide goods and/or services to one of their clients, the supply to the Australian government agency is GST-free under subsection 38-60(3) of the GST Act to the extent the services are of a kind covered by:

● Item 2.1 daily living activities assistance and provided by you to an aged or disabled person, or

● the GST-free Supply (Care) Determination 2007 and provided by you to a targeted person

unless you have agreed with the Australian government agency that the supply is not to be treated as a GST-free supply under subsection 38-60(4).

Insurers and compulsory third party scheme operators

As explained in Question 4, your supply to another entity carrying on the business is not ‘care’ as care can only be supplied to an individual. A business entity cannot be supplied with care.

However, subsections 38-60(1), (2) and (4) state:

Insurers

(1) If:

(a) a supply is a supply of a service to an insurer; and

(b) the service is the supplier making one or more other supplies of goods or services to an individual; and

(c) at least one of the other supplies is:

(i) wholly or partly *GST-free under this Subdivision; and

(ii) for settling one or more claims under an *insurance policy of which the insurer is an insurer;

the first-mentioned supply is GST-free to the extent that the other supplies mentioned in paragraph (b) are GST-free under this Subdivision.

Compulsory third party scheme operators

(2) If:

(a) a supply is a supply of a service to an *operator of a *compulsory third party scheme; and

(b) the service is the supplier making one or more other supplies of goods or services to an individual; and

(c) at least one of the other supplies is:

(i) wholly or partly *GST-free under this Subdivision; and

(ii) made under the compulsory third party scheme;

the first-mentioned supply is GST-free to the extent that the other supplies mentioned in paragraph (b) are GST-free under this Subdivision.

Parties may agree for supply not to be GST-free

(4) However, a supply is not GST-free (to any extent) under this section if the supplier and the *recipient have agreed that the supply, or supplies of a kind that include that supply, not be treated as GST-free supplies.

Where an insurer or compulsory third party scheme operator contracts you to provide goods and/or services to one of their clients, you are making the supply to that insurer or compulsory third party scheme operator of the service of making a supply of goods and/or services to an individual.

The same reasoning as stated previously in respect of subsection 38-30(3) and (4) applies with the exception that the underlying supply you make to the individual may be a supply of ‘care’ for the purposes of that provision.

Where the insurer or compulsory third party scheme operator is not an Australian government agency, payments by them to you will not be government funding.

However, subsection 38-30(3) is relevant as this does not require government funding.

The supply under your arrangement with the insurer or compulsory third party scheme operator is GST-free under subsection 38-60(1) or (2) respectively of the GST Act to the extent the services are of a kind covered by:

● Item 2.1 daily living activities assistance and provided by you to an aged or disabled person

unless you have agreed with the insurer or compulsory third party scheme operator that the supply is not to be treated as a GST-free supply under subsection 38-60(4).